This
matter is before the Court on the Motion to Quash Trial
Subpoena Issued to James Mullen, ECF No. 453, filed by
Defendants Werner Enterprises, Inc. and Drivers Management,
LLC (collectively “Werner”). For the reasons
stated below, the Motion will be denied.

BACKGROUND

On May
2, 2017, Plaintiffs served counsel for Werner with a trial
subpoena for James Mullen. ECF Nos. 455-1, 455-6. Mullen was
the former Executive Vice President and General Counsel at
Werner Enterprises, Inc. He is no longer employed at Werner.
On Werner's behalf, Mullen had assisted in answering
certain discovery, and verified that discovery responses were
true and accurate. See Defendant's Answers to
Interrogs. dated May 14, 2012, at 10, 12. Mullen was also
designated as Werner's corporate representative under
Fed.R.Civ.P. 30(b)(6) to testify regarding certain aspects of
Werner's Driver Log System. See ECF No. 455-5.
At Mullen's deposition, he stated that he would testify
as Werner's representative regarding “[w]ho decided
what types of time the Driver Log System would designate as
compensable” and “[a]ll efforts taken by
Defendants to determine if their payment system complies with
federal and state law.” Mullen Dep., ECF No. 323-7,
Page ID 19212. Werner designated another witness, Jaime Maus,
Werner's Director of Safety, to testify as to other
aspects of the Driver Log System, including how drivers
logged certain time. See ECF No. 323-5, Page ID
19189.

The
parties conferred regarding the Subpoena. Counsel for Werner
took the position that, in light of the Court's rulings
on Plaintiffs' request for liquidated damages,
Mullen's testimony was not relevant. Counsel for
Plaintiffs responded that because Mullen had been the chief
legal officer of Werner, he would have “understandings
regarding the [hours of service] regulatory framework
affecting drivers as well as Werner's obligations with
respect to the same.” ECF No. 455-3, Page ID 42574.
Counsel for Plaintiffs also noted that Mullen appeared on
Werner's witness list. Id.; see also
Werner's Witness List, ECF No. 457.

DISCUSSION

Werner
argues that the trial subpoena unduly burdens Mullen. Werner
also argues that permitting Mullen to testify would be
unfairly prejudicial to Werner because his testimony is not
relevant to any remaining issues at trial. Specifically,
Werner argues that Plaintiffs' subpoena unduly burdens
Mullen because (i) he is no longer employed by Werner; (ii)
his testimony has no relevance to this case; and (iii) he was
not the individual designated by Werner to testify about the
Hours of Service regulations. See Werner Reply Br., ECF No.
476, Page ID 42824. The Court concludes that even if the
relevance of Mullen's testimony is objected to at trial,
Werner has not shown that it would be unduly burdensome for
Mullen to testify.

Under
Federal Rule of Civil Procedure 45(d)(3)(A), the court must
quash or modify a subpoena that “subjects a person to
undue burden.” In evaluating whether a subpoena
presents an undue burden, courts consider the following
factors: (1) the relevance of the information requested; (2)
the need of the party for the information; (3) the breadth of
the request; (4) the time period covered by the request; (5)
the particularity with which the party describes the
requested information; and (6) the burden imposed. ACI
Worldwide Corp. v. Mastercard Techs., LLC, No. 8:14CV31,
2016 WL 3647850, at *2 (D. Neb. July 1, 2016) (citing
Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818
(5th Cir. 2004); see also Schedin v. Johnson &
Johnson (In re Levaquin Prod. Liab. Litig.),
No. CIV. 08-5743, 2010 WL 4867407, at *2 (D. Minn. Nov. 9,
2010).

Werner
does not expressly address any burden Mullen would suffer,
should he be called to testify. Werner notes that Mullen no
longer works for Werner. However, this fact alone does not
create an undue burden for Mullen or Werner. Werner itself
lists Mullen as a potential witness. See
Werner's Amended Proposed Witness List, ECF No. 457.
Werner filed its Amended Proposed Witness List, which
included Mullen as a potential witness, the day after it
filed its Motion to Quash.

Werner's
major argument focuses on the relevance of the information
Plaintiffs seek to obtain. Werner argues that Plaintiffs do
not need information from Mullen because Werner has
designated its Director of Safety, Jaime Maus, to testify
regarding how drivers should log their time. In their
response, Plaintiffs identified several areas of factual
inquiry that may be outside Maus's knowledge. Plaintiffs
demonstrated that Mullen prepared and verified discovery
responses that relate to whether various activities performed
were considered on-duty or off-duty. Because Mullen prepared
and verified the responses, he may have direct knowledge
regarding facts relevant to issues remaining for the jury.

Werner
also argues that Plaintiffs' proposed line of questioning
falls outside the scope of Mullen's 30(b)(6) testimony.
Yet Werner cites no authority for the proposition that an
individual called as a fact witness is limited to matters
testified to as a 30(b)(6) witness. Plaintiffs are not
limited to the scope of Mullen's 30(b)(6) deposition
testimony simply because he was a designated 30(b)(6)
witness.

Werner
refers this Court to Schedin v. Johnson &
Johnson, in which the District of Minnesota quashed a
trial subpoena to the Chairman and CEO of Johnson &
Johnson. The moving party argued that late notification of
the subpoena, combined with the distance the CEO would have
to travel all outweighed the potential relevance of his
testimony. The court reasoned that plaintiffs failed to
demonstrate “the relevance of [the CEO's] testimony
since none of the proposed areas of his testimony are issues
of dispute.” 2010 WL 4867407, at *2. The court also
noted it was not clear “why other live witnesses, who
were timely named, could not provide the information they
seek regarding the corporation's history, mission, and
experience with [the plaintiff].” Id.

In
contrast to the facts in Schedin, Werner has not
identified any burden, such as travel, that would apply to
Mullen. He was timely disclosed as a witness not only by
Plaintiffs, but by Werner. Although Werner has identified
other witnesses who potentially could provide some of the
information sought, Plaintiffs have demonstrated that
Mullen's personal knowledge and experience may be
relevant to the issues before the jury.

Accordingly,
IT IS ORDERED: the Motion to Quash Trial Subpoena Issued to
James Mullen, ECF No. 453, filed by Defendants Werner
...

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